STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0986T

) BILL SALTER ADVERTISING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William

B. Thomas, held a formal hearing in this case on June 21, 1985, in Pensacola, Florida. Subsequently, the parties submitted proposed findings of fact and conclusions of law which have been considered. Except where the proposed findings submitted are subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each, either directly or indirectly.

APPEARANCES

FOR PETITIONER: Maxine F. Ferguson, Esquire

Haydon Burns Building, Mail Station

58

Tallahassee, Florida 32301-8064

FOR RESPONDENT: Mr. Bill Salter, President

Bill Salter Advertising, Inc. Post Office Box 422 Pensacola, Florida 32570

As a witness for the Respondent.

By notice dated February 13, 1985, the Department advised the Respondent that a sign to be located in Escambia County on the east side of I-110, approximately

100 feet south of Kilby Lane, for which permit number

11038-10 had been issued, was in violation of Section 479.11, Florida Statutes, and Section 14- 10.05(1), Florida Administrative Code. The Department seeks to revoke this permit and prevent the erection of a sign by the Respondent at this location on the grounds that there is an absence of visible commercial activity within the required distance of this location to qualify the site as an unzoned commercial or industrial area pursuant to Sections 479.11 and 479.111, Florida Statutes, and Section 14-10.05, Florida Administrative Code. Thus, the issue is whether the Respondent's permit should be revoked because the sign location is not within an unzoned commercial or industrial area.

FINDINGS OF FACT

1. On or about April 17, 1979, the Department issued permit number 11038-10 to the Respondent, Bill Salter Advertising, Inc., authorizing the erection of a sign on the east side of I-110, 100 feet south of Kilby Lane, in Escambia County, Florida. Prior to the issuance of this permit, the site was field inspected and approved by Department personnel.

   
   

2. The Respondent's representative who submitted the permit application designated on this application that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes.

   
   

3. The only commercial or industrial activity that was located within 660 feet of the right-of-way of I-110, and within 800 feet of the site where the Respondent's sign was to be erected, was a brick building owned by the Respondent. This building is located on Tamarac Street in an unzoned area, and the Respondent uses it to house the art department of his company. One employee works inside doing art work, and three salesmen come and go, to and from the building daily. The company operations manager also stops by the building to use the telephone, but he does not work there.

   
   

4. The Salter building has a picture window in front, and the entrance is located in the front. This front side is the side facing away from I-110. The building is not directly on the interstate, and the area where Tamarac

   Street is located is residential in nature. The Salter building is the only business in the immediate vicinity.

   
   

5. In the rear of the Salter building the landscape slopes downward to I-110, and the area between the interstate and the Salter building is covered with foliage. The area between I-110 and the site of the Salter building is almost completely obscured by this foliage, but a portion of the back side of the building can be seen from I-110, as can the roof, and from some angles on one of the sides of the building.

   
   

6. There is an area in front of and on the sides of the Salter building, away from the interstate, where cars can be parked. The salesmen come and go several times a day, using these areas for parking. However, due to the slope of the ground between the Salter building and I-110, the interstate is at such a downward angle from the building that none of these activities can be seen from I-

110. There is no sign on or around the Salter building to indicate that it contains a business, and there is nothing else about either the building or the area to identify the one as a business structure or the other as a commercial area.

1. In summary, the Bill Salter building houses a business which is located within 660 feet of the interstate, and the subject sign is within 800 feet of this business, but there are no business activities that can be seen from the main-traveled way of I-110.

   
   

2. Subsequent to the issuance of the permit to the Respondent, the site was inspected by the Department's Right-of-Way Administrator who determined that the permit had been issued in error because there was no visible commercial activity within 800 feet of the sign. In February of 1985, the Department issued a Notice of Violation advising the Respondent that the subject permit was being revoked because the sign had not been erected in a zoned or unzoned commercial area.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate

   outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

   
   

4. Section 479.11, Florida Statutes (1979), provides in part:

   
   

   No advertisement, advertising sign or adver- tising structure shall be constructed, erected, used, operated or maintained:

   1. within 660 feet of the nearest edge of the right-of-way of all portions of the inter- state system or the federal-aid primary system except as provided in s. 479.111. . . .

      
      

5. Section 479.111, Florida Statutes (1979), provides in part:

   
   

   Only the following signs shall be permitted within the controlled portions of the inter- state and federal-aid primary systems:

   (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas sub- ject to agreement established by s. 479.02.

   
   

6. Section 479.02, Florida Statutes (1979), provides in part:

   
   

   1. It shall be the function and duty of the department, subject to current federal regulations, to:

      1. Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the Governor in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code.

         1. Determine unzoned commercial and industrial areas; . . .

            
            

7. Section 479.01, Florida Statutes (1979), sets forth the following definitions:

   
   

   (10) "Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate, federal-aid primary system, or state highway system not zoned by state or local law, regula-

   tion or ordinance, in which there is located one or more industrial or commercial activities generally recognized as commercial or indus- trial by zoning authorities in this state, ex- cept that the following activities may not be so recognized:

   1. Activities not visible from the main- traveled way.

   (15) "Maintain" means to allow to exist.

   
   

8. Section 14-10.02, Florida Administrative Code, provides in part:

   
   

   . . . (T)he department shall effectively con- trol or cause to be controlled, the erection and maintenance of outdoor advertising, adver- tising signs and advertising structures along all the Interstate and Federal-Aid Primary Highway Systems. . . .

   
   

9. Section 479.08, Florida Statutes (1984), provides in part:

   
   

   The department has the authority to deny or revoke any permit requested or granted under this chapter in any case in which it determines that the application for the permit contains knowingly false or misleading information or that the permittee has violated any of the provisions of this chapter. . . .

   
   

10. Pursuant to these statutes and rules the Department of Transportation has a duty not only to control the erection of outdoor advertising signs along the interstate and federal-aid primary highways, but also to control the continued maintenance of these signs. Section 479.02(1)(c), Florida Statutes, further authorizes the Department to determine what are unzoned commercial and industrial areas.

    
    

11. Apparently, the Department's inspector who approved the Respondent's application in 1979 did not consider subsection (d) of Section 479.01(10), Florida Statutes, which excludes activities not visible from the main-traveled way from qualifying a site as unzoned commercial. The Department contends now that this permit was thus issued in error, and it seeks to correct this

    error by revoking the Respondent's permit. Such an error as this is correctable under Section 14-10.02, Florida Administrative Code, and Section 479.02(1)(c), Florida Statutes, which give to the Department the duty to effectively control the continued existence of signs along controlled highways, and to determine what are unzoned commercial areas.

    
    

12. Accordingly, the Department has reconsidered its issuance of the permit to the Respondent, and has now determined that the subject area is residential in nature, and that the activities in and around the Salter building are not visible from the main-traveled way of I-110, and thus this area may not be recognized as unzoned commercial. The Department's redetermination has a rational, factual and legal basis, and is thus not clearly erroneous. Agencies are afforded wide discretion in the interpretation of the statutes they administer, and this interpretation should be followed unless it is clearly erroneous.

    Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

    
    

13. Therefore, regardless of whether the Salter building exists within 660 feet of the interestate and within 800 feet of the Respondent's sign, and a portion of the rear of this building can be seen from I-110, or whether the subject application was approved by the inspector and other Department officials and the permits subsequently issued by the Department, the statutory prerequisite for the erection of a lawful sign was not present when the application was submitted. The proposed site was not in a commercial or industrial area within 800 feet of business activities that were visible from the interstate when the Respondent certified on its application that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes. Activities that are not visible from the main-traveled way are excluded by the statutory definitions from qualifying a location as an unzoned commercial or industrial area. Thus, the Department was correct in making its redetermination that there was no visible business activity in the area that would qualify the site as unzoned commercial, and the Respondent's permit may be revoked pursuant to Section 479.08, Florida Statutes.

    
    

14. The respondent contends that the Department is estopped to revoke its permit, and the case law cited has

been considered. Although the doctrine of estoppel is applicable to the Sate of Florida, 1/ and the Department has entered numerous Final Orders invoking the doctrine against itself in appropriate factual circumstances, 2/ it is not applicable to the factual situation present in this proceeding. The elements of estoppel are (1) a representation of a material fact that is contrary to a later-asserted position, (2) reliance on this

representation, and (3) a change of position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Kuge, M.D. cited in footnote 2, Salz

v. Department of Administration, Division of Retirement,

432 So.2d 1376 (Fla. 3rd DCA 1983). Since the evidence does not support a finding that a Department representation was made, this doctrine is inapplicable to the facts of this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that permit number 11038-10 held by the Respondent, Bill Salter Advertising, Inc., authorizing a sign to be located on the east side of I-110, 100 feet south of Kilby Lane in Escambia County, Florida, be revoked, and the Respondent not be allowed to erect a sign at this location.

THIS RECOMMENDED ORDER entered this 21st day of August, 1985, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985.

ENDNOTES

1/ Kuge, M.D. v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3rd DCA 1984).

2/ See, for example, Department Final Orders entered in

D.O.T. v. National Advertising Co. (DOAH Case No. 82-560T), Foster and Kleister, Inc., v. D.O.T. (DOAH Case No. 79- 387T) and Lamar Advertising Co. v. D.O.T. (DOAH Case No.

78-2179T).

COPIES FURNISHED:

Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064

Mr. Bill Salter, Pres.

Bill Salter Advertising, Inc. Post Office Box 422

Milton, Florida 32570

Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581

Hon. Paul A. Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 85-000986

Orders for Case No: 85-000986